61 st Congress, | 

SENATE. 

j Document 

3d Session. j 


( No. 848. 






REVISION AND CODIFICATION OF THE LAWS. 


Mr. Heyburn presented the following 

CONFERENCE REPORT RELATIVE TO THE REVISION AND CODI¬ 
FICATION OF THE LAWS. 


March 1, 1911.—Ordered to be printed. 


The committee of conference on the disagreeing votes of the two 
Houses on the amendment of the House to the bill S. 7031, being a 
bill to codify, revise, and amend the laws relating to the judiciary, 
having met, after full and free conference, have agreed to recommend, 
and do recommend, to their respective Houses as follows: 

That the Senate agree to the House amendment, with amendments 
to sections 2, 13, 14, 21, 24, 28, 29, 30, 40, 56, 70, 76, 78, 88, 91, 92, 
99, 103, 106, 112, 118, 126, 128, 140, 151, 152, 178, 182, 186, 201, 
207, 226, 227, 228, 229, 240, 250, 251, 259, 284, 289, 298, 301. 

That the House agree to the amendments proposed by the Senate 
conferees, as follows: 

(The references to section numbers and pages are to the bill as 
reported by the conferees and not to the bill as it passed the House 
or Senate.) 

Section 2. On page 3, in line 16, beginning after the word “ install¬ 
ments’’ strike out the remainder of the section. 

Section 13. On page 7, in line 2, after the word ‘‘absence” insert 
the words of all the circuit judges. 

Section 14. Page 8, in line 1, strike out the word “their” and 
insert in lieu thereof the word the] and after the word “absence” 
insert the words of all the circuit judges. 

Section 21. On page 10, in line 13, strike out the words “or his 
counsel.” In line 22, before the word “reason” insert the words 
facts and the. In line 22, softer the word “cause” insert the word 
shall. On page 11, line 2, after the word “affidavit” insert the 
words and no such affidamt shall he filed unless accompanied hy a cer¬ 
tificate of counsel of record that such affidavit and application are 
made in good faith. 

Section 24. On page 12, in line 10, strike out the word “five” and 
insert three. On page 15, in line 1, after the word “ authority” strike 
out the following: “except in suits to suspend, enjoin, or restrain 
the action of any officer of a State in the enforcement, operation, or 
execution of a statute of such State, upon the ground of the uncon- 












2 


CODIFICATION OF THE LAWS. ^ ^ 

stitutionality of such statute/^ and insert in lieu thereof the following, 
which will be section 266: 

No interlocutory injunction suspending or restraining the enforce¬ 
ment, operation, or execution of any statute of a State hy restrain¬ 
ing the action of any officer of such State in the enforcement or 
execution of such statute, shall he issued or granted hy any 'justice of 
the Supreme Court, or hy any district court of the United States, or hy 
any judge thereof, or hy any circuit judge achng as district judge, upon 
the ground of the unconstitutionality of such statute, unless the applica¬ 
tion for the same shall he presented to a justice of the Supreme Court of 
the United States, or to a circuit or district judge, and. shall he heard and 
determined hy three judges, of whom at least one shall he a justice of the 
Supreme Court, or a circuit judge, and the other two may he either 
circuit or district judges, and unless a majority of said three judges 
shall concur in granting such application. Whenever such application 
as aforesaid is presen ted to a justice of the Sup>reme Court, or to a judge, 
he shall immediately call to his assistance to hear and determine the 
application two other judges: Provided, however. That one of such 
three judges shall he a justice of the Supreme Court, or a circuit judge. 
Said application shall not he heard or determined before at least five 
days' notice of the hearing has been given to the governor and to the 
attorney general of the State, and to such other persons as may he defend¬ 
ants in the suit: Provided, That if of opinion that irreparable loss or 
damage would result to the complainant unless a temporary restraining 
order is granted, any justice of the Supreme Court, or any circuit or 
district judge, may grant such temporary restraining order at any 
time before such hearing and determination of the application for an 
interlocutory injunction, hut such temporary restraining order shall 
remain in force only until the hearing and determination of the appli¬ 
cation for an interlocutory injunction upon notice as aforesaid. The 
hearing upon such application for an interlocutory injunction shall he 
given precedence and shall he in every way expedited and he assigned 
for a hearing at the earliest practicable day after the expiration of the 
notice hereinbefore provided for. An appeal may he tahen direct to the 
Supreme Court of the United States from the order granting or denying 
after notice and hearing, an interlocutory injunction in such case. 

Section 28. On page 23, beginning in line 24, amend so as to read: 
^‘Provided further. That no suit against a corporation or joint-stock 
company, brought in a State court of the State in which the cause 
of action arose, shall be removed to any court of the United States 
on the ground that the parties are citizens of different States, if the 
suit is brought in the county where the cause of action arose or 
within the county where the defendant is served with process and 
the plaintiff resides.’’ 

Section 29. On page 24, in line 17, strike out the word 'Uwenty” 
and insert the word thirty. On page 24, in line 25, strike out the 
word ^Mue” and insert the word Written. In line 3 on page 25 strike 
out the word ^Uwenty” and insert the word thirty; in line 5 strike out 
the word ‘Uwenty” and insert the word thirty. 

Section 30. On page 25, in line 13, strike out the word ^^five” 
and insert the word three. 

Section 40. On page 35 restore section 40, reading: “The trial of 
offenses punishable with death shall be had in the county where the 
offense was committed where that can be done without great incon¬ 
venience.” 


CODIFICATION OF THE LAWS. 


3 


;; Section 56. On page 41, in line 15, substitute a period for the 
^semicolon, and strike out the words ‘‘provided that.’’ On page 41, 
’^in line 21, strike out the word “approval” and substitute the word 

• disapproval; in line 1, on page 42, strike out the word “approval” and 

• substitute the word disapproval. In line 5 strike out the words “The 

• failure to secure ” ; also the word “approval,” and substitute the word 
disapproval. Beginning after the word “brought,” in line 10, strike 
out the words “The circuit court of appeals, or the judge thereof 
approving such order or appointment, may, at any time, for good 
cause shown, revoke such approval; and thereafter, unless the circuit 
court of appeals shall renew such order, the receiver shall thereby be 
divested of jurisdiction over all such property lying or being without 
the State in which the suit has been brought.” In line 17 strike out 
the words “proviso to” and insert the words provisions of; and in 
line 4 strike out the words “and his appointment so approved.” 

Section 70. On page 51, in line 9, after the word “district,” insert 
the words also the territory embraced on the date last mentioned in the 
counties of Walker, Winston, Marion, Fayette and Lamar, which shall 
constitute the Jasper division of said district. On page 52, in line 4, 
after the word “year,” insert the words/or the Jasper division, at 
Jasper, on the second Tuesdays in January and June: Provided, That 
suitable rooms and accommodations for holding court at Jasper shall 
be furnished free of expense to the Government. 

Section 76. On page 58 strike out all of lines 16, 17, and 18, 
after the word “ Tallahassee,” and insert in lieu thereof the following: 
on the second Monday in January; at Pensacola on the first Mondays 
in May and November; at Marianna on the first Monday in April; 
and at Gainesville on the second Mondays in June and December. 

Section 78. Strike out the section and insert in lieu thereof the 
following: 

Sec. —. The State of Idaho shall constitute one judicial district, to 
be known as the district of Idaho. It is divided into four divisions, to 
be known as the northern, central, southern, and eastern divisions. 

The territory embraced on the first day of July, nineteen hundred and 
ten, in the counties of Bonner, Kootenai, and Shoshone, shall constitute 
the northern division of said district; and the territory embraced on the 
date last mentioned in the counties of Idaho, Latah, and Nez Perce, 
shall constitute the. central division M said district; and the territory 
embraced on the date last mentioned, in the counties of Ada, Boise, 
Blaine, Casia, Twin Falls, Canyon, Elmore, Lincoln, Owyhee, and 
Washington, shall constitute the southern division of said district; and the 
territory embraced on the date last mentioned in the counties of Bannock, 

- Bear, Lake, Bingham, Custer, Fremont, Lemhi, and Oneida, shall 
constitute the eastern division of the said district. Terms of the district 
court for the northern division of the said district shall be held at Coeur 
d’Alene City on the fourth Monday in May and the third Monday in 
November; for the central division, at Moscow on the second Monday 
in May and the first Monday in November; for the southern division, 
at Boise City on the second Mondays of February, and September; 
and for the eastern division, at Pocatello on the second Mondays of March 
and October. The clerk of the court shall maintain an office in charge 
qj himself or a deputy at Coeur d’Alene City, at Moscow, at Boise City, 
and at Pocatello, which shall be open at all times for the transaction of 
the business of the court. 


4 • 


CODIFICATION OF THE LAWS. 


Section 88. On page 76, in line 6, after the wprd ''Cmwford/' 
insert the word in line 8, after the word Saginaw,” insert the 

word Shiawassee; in line 11 strike out the word ‘^Genesee”; and in 
line 13 strike out the word Shiawassee.” 

Section 91. On page 82, in line 3, after the word ''Lincoln” insert 
the ward Maries) in line 14, on page 83,strike out the word "Maries.” 
On page 84, in line 10, after the words "Saint Joseph” insert the 
words at Joplin) in line 14 strike out the words "of holding court” 
and insert in lieu thereof the words at which court is now held. 

Section 92. On page 84, in line 20, after the word "October” 
insert the following: at Missoula on the iirst Mondays in January and 
June; and at Billings on the hrst Mondays in March and August. 

Section 99. On page 94, in line 9, strike out the words "of holding 
court” and insert in lieu thereof the following: at which court is now 
held. 

Section 103. On page 99, at the end of line 4, add the following: 
The cleric of the court for the middle district shall maintain an office 
in charge of himself or a deputy at Harrisburg; and civil suits instituted 
at that place shall he tried there if either party resides nearest that 
place of holding court, unless by consent of parties they are removed to 
another place for trial. 

Section 106. On page 101, line 2, strike out the word "Lyman”; in 
line3 strike out "Crow Creek”; in line 4 strikeout "Lower Brule and”; 
in line 7 strike out "Armstrong”; in line 8 strike out "Dewey”; and 
strike out all from the word "Reservation”, inline 10, and substitute 
the following: and in that portion of the Standing Rode Indian Reser¬ 
vation lying in South Dalcota shall constitute the northern division; the 
territory embraced on the date last mentioned in the counties of Arm¬ 
strong, Buffalo, Dewey, Faulk, Hand, Hughes, Hyde, Jerauld, Lyman, 
Potter, Stanley, and Sully, and in Cheyenne River, Lower Brule, and 
Crow Creek Indian Reservations, shall constitute the central division; 
and the territory embraced on the date last mentioned in the counties of 
Bennett, Butte, Custer, Fall River, Harding, Lawrence, Meade, Mel¬ 
lette, Pennington, Perkins, Shannon, Todd, Tripp, Washabaugh, and 
Washington and in the Rosebud and Pine Ridge Indian Reservations 
shall constitute the western division. Terms of the district court for the 
southern division shall be held at Sioux Falls on the first Tuesday in 
April and the third Tuesday in October; for the northern division at 
Aberdeen on the first Tuesday in May and the second Tuesday in Novem¬ 
ber; for the central division at Pierre on the second Tuesday %n June and 
the first Tuesday in October; and for the western division at Deadwood 
on the third Tuesday in May and the first Tuesday in September. The 
clerk of the district court shall maintain an office in charge of himself or 
a deputy at Sioux Falls, at Pierre, at Aberdeen, and at Deadwood, which 
shall be kept open for the transaction of the business of the court. 

Section 112. On page 113, line 23, strike out the word "Kittitas” 
and insert it in line 4, on page 114, after the word Klickitat) in lines 
1 and 7 on page 114, strike out the word "eastern” and insert in lieu 
thereof the word Northern) in lines 21 and 25 strike out the word 
"western” and insert in lieu thereof the word southern. 

Section 118. On page 121, in line 22, beginning after the word 
"circuit” strike out the remainder of the section. 

Section 126. Strike out the section. The provisions of this sec¬ 
tion are embraced in section 259. 


CODIFICATION OF THE DAWS. 5 

Section 128. On page 128, in line 5, after the word ^daws’' insert 
tlie words undei' the copyright laws. 

Section 140. On page 134, in line 5, strike out the word quarterly” 
and insert in heu thereof the word monthly. 

Section 151. On page 139, in line 18, after the word ‘‘may” strike 
out the words “or the committee thereof to which it shall have been 
referred, also may,”. On page 140, in line 18, after the word “House” 
strike out the words “or such committee.” At the end of the section 
add the following: In any proceeding under this section, the court shall 
determine as a preliminary inquiry the question of limitation, delay, or 
laches; and if it shall he of opinion that the delay in presenting the claim 
is not excusable, and that the bar of the statute of limitation should not be 
removed, it shall not proceed further to find the existence of loyalty, lia¬ 
bility, or the extent thereof, in such case, but shall report such finding in 
bar to the House by which the claim or matter was referred. 

Section 152. Strike out the section. 

Section 178. On page 140, in line 16, strike out the word “here¬ 
inbefore” and add, after the word “provided,” the words by law. 

Section 182. Insert a new section numbered 182, as follows: 

Sec. 182. In any case brought in the Court of Claims under any act 
of Congress by which that court is authorized to render a judgment or 
decree against the United States, or against any Indian tribe or any 
Indians, or against any fund held in trust by the United States for any 
Indian tribe or for any Indians, the claimant, or the United States, or 
the tribe of Indians, or other party in interest shall have the same right 
of appeal as is conferred under sections two hundred and twenty-nine 
and two hundred and thirty; and such right shall be exercised only 
within the time and in the manner therein prescribed. 

Section 186. On page 152, in line 23, add the words on account of 
color. 

Section 201. Strike out this section, the provisions of this section 
being embraced in section 259. 

Section 207. On page 169, in line 15, strike out the word “now”; 
in line 16, after the word “thereof” add the following: immediately 
prior to June eighteenth, nineteen hundred and ten. 

Section 226. On page 182, in line 7, after the word “court,” insert 
the words heretofore published] in line 8, strike out the words “after 
the fifth of August, eighteen hundred and eighty-two”; in line 10, 
strike out the word “one” and insert the word two, and strike out 
“and fifty cents.” After the word “volume” add the' following: 
and those hereafter published at a sum not to exceed one dollar and 
seventy-hve cents per volume. In line 18 strike out “fifty” and insert 
seventy-five. 

Section 227. On page 183, in line 7, after the words “Attorney 
General” insert the words each United States district attorney. On 
page 184, in line 14, after the word “twenty” add the word hve. On 
page 185, in line 3, after the word “them,” insert the words to each 
United States judge and to each United States district attorney who has 
not received a set. On page 185, in line 17, after the word “office” 
strike out the remainder of the section. 

Section 228. On page 186, in line 7, strike out the words “or 
hereafter.” In line 9, after the word “than” strike out “one” and 
insert two] and after the word “dollar” strike out “and fifty cents,” 
and at the end of the line add: and such number of copies of each 


6 


CODIFICATION OF THE LAWS. 


report hereafter published as he may require, for which he shall pay not 
more than one dollar and seventy-five cents per volume. 

Section 229. On page 187. Strike out the section and insert in 
lieu thereof the following; 

Sec .— The Attorney General is authorized to procure complete sets of 
the Federal Reporter or, in his discretion, other publication containing 
the decisions of the circuit courts of appeals, circuit courts, and district 
courts, and digests thereof, and also future volumes of the same as 
issued, and distribute a copy of each such reports and digests to each 
placerwhere a circuit court of appeals or a district court is now or may 
hereafter regularly be held, and to the Supreme Court of the United 
States, the Court of Claims, the Court of Customs Appeals, the Com¬ 
merce Court, the court of appeals and the supreme court of the District 
of Columbia, the Attorney General, the Solicitor General, the Solicitor 
of the Treasury, the Assistant Attorney General for the Department of 
the Interior, the Commissioner of Patents, and the Interstate Commerce 
Commission; and- to the Secretary of the Senate, for the use of the Senate, 
and to the Cleric of the House of Representatives, not more than three 
sets each. \Yhenever any such courtroom, office, or officer shall have a 
partial or complete set of any such reports or digest already purchased 
or owned by the United States, the Attorney General shall distribute to 
such courtroom, office, or officer only sufficient volumes to mahe a com¬ 
plete set thereof. No distribution of reports or digests under this section 
shall be made to any place where the court is held in a building not 
owned by the United States, unless there be at such place a United States 
officer to whose responsible custody they can be committed. The clerics 
of the courts {except the Supreme Court) to which the reports and digests 
are distributed uTider this section shall Iceep such reports and digests for 
the use of the courts and the officers thereof. All reports and digests 
distributed under the provisions of this section shall be and remain the 
property of the United States, and, before distribution shall be plainly 
marked on their covers with the words The property of the United 
States,’^ and- shall be transmitted by the officers receiving them to their 
successors in office. Not to exceed two dollars per volume shall be paid 
for the bade and current volumes of the Federal Reporter or other publi¬ 
cation purchased under the provisions of this section, and not to exceed 
five dollars per volume for the digest, the said money to be disbursed under 
the direction of the Attorney General; and the Attorney General shall 
include in his annual estimates submitted to Congress an estimate for 
the back and current volumes of such reports and digests, the distribution 
of which is provided for in this section. 

Section 240. On page 192, in line 19, after the word ^^case’’ insert 
civil or criminal; in line 22, after the word ‘^otherwise,” insert upon 
the petition of any party thereto. 

Section 250. This section is intended to take the place of section 
237 of the House amendment. 

Section 250. Any final judgment or decree of the Court of Appeals 
of the District of Columbia may be reexamined and affirmed, reversed, 
or modified by the Supreme Court of the United States, upon writ of 
error or appeal in the following cases: 

First. In cases in which the jurisdiction of the trial court is in issue; 
but when any such case is not otherwise reviewable in said Supreme 
Court, then the question of jurisdiction alone shall be certified to said 
Supreme Court for decision. 

Second. In prize cases. 


CODIFICATION OF THE LAWS. 


7 


Third. In cases involving the construction or application of the 
Constitution of the United States, or the constitutionality of any law 
of the United States, or the validity or construction of any treaty 
made under its authority. 

Fourth. In cases in which the constitution or any law of a State 
is claimed to be in contravention of the Constitution of the United 
States. 

Fifth. In cases in which the validity of any authority exercised 
under the United States or the existence or scope of any power or 
duty of an officer of the United States is drawn in question. 

Sixth. In cases in which the construction of any law of the United 
States is drawn in question by the defendant. 

Except as provided in the next succeeding section, the judgments 
and decrees of the said court of appeals shall be final in all cases aris¬ 
ing under the patent laws, the copyright laws, the revenue laws, the 
criminal laws, and in admiralty cases. Except as provided in the 
next succeeding section, the judgments and decrees of the said court 
of appeals shall be final in all cases not reviewable as hereinbefore 
provided. 

Writs of error and appeals shall be taken within the same time, in 
the same manner, and under the same regulations as writs of error 
and appeals are taken from the circuit courts of appeals to the 
Supreme Court of the United States. 

Section 251. This section is intended to take the place of section 
238 of the House amendment. 

Section 251. Strike out the section and substitute the following: 
In any case in which the judgment or decree of said court of appeals is 
made final hy the section last preceding, it shall he competent for the 
Supreme Court of the United States to require, hy certiorari or otherwise, 
any such cause to he certified to it for its review and determination, with 
the same power and authority in the case as if it had been carried hy 
writ of error or appeal to said Supreme Court. It shall also he compe¬ 
tent for said court of appeals, in any case in which its judgment or 
decree is made final under the section last preceding, at any time to 
certify to the Supreme Court of the United States any questions or 
propositions of law concerning which it desires the instruction of that 
court for their proper decision; and thereupon the Supreme Court may 
either give its instructions on the questions and propositions certified 
to it, which shall he binding upon said court of appeals in such case, 
or it may require that the whole record and cause he sent up to it for its 
consideration, and thereupon shall decide the whole matter in contro¬ 
versy in the same manner as if it had been brought there for review hy 
writ of error or appeal. 

Section 259. This section is intended to take the place of a part of 
section 2, all of section 126, and of 20266, in the bill as it passed.the 
House. 

Sec. 259. The circuit justices, the circuit and district judges of the 
United States, and the judges of the district courts of the United States 
in Alaslca, Hawaii, and Porto Rico, shall each he allowed and paid his 
necessary expenses of travel, and his reasonable expenses {not to exceed 
$10 per day) actually incurred for maintenance, consequent upon 
his attending court or transacting other official business in pursuance of 
law at any place other than his official place of residence, said^ expenses 
to he paid hy the marshal of the district in which such court is held or 
official business transacted, upon the written certificate of the justice or 


8 


CODIFICATIOISr OF THE LAWS. 


judge. The official place of residence of each justice and of each circuit 
judge while assigned to the Commerce Court, shall he at Washington; 
and the official place of residence of each circuit and district judge, and 
of each judge of the district courts of the United States in AlasTca, 
Hawaii, and Porto Rico, shall he at that place nearest his (ictual resi¬ 
dence at which either a circuit court of appeals or a district court is 
regularly held. Every such judge shall, upon his appointment, and from 
time to time thereafter whenever he may change his official residence, in 
writing notify the Department of Justice of his official place of residence. 

Section 260. On page 202, in line 10, strike out the words 
time ten years before^’ and insert at the time of. 

Section 284. On page 211, in line 20, after the word “ therefor,^ ^ 
insert the following: 

If the United States attorney for any district which has a city or 
borough containing at least three hundred thousand inhahitants, shall 
certify in writing to the district judge, or the senior district judge of 
the district, that the exigencies of the public service require it, the judge 
may,in his discretion, also order a venire to issue for a second grand jury. 

Section 289. On page 216, in line 3, before the word authority,’^ 
insert the word same. 

Section 297. On page 218, in line 13, strike out ‘twenty” and 
insert fourteen) in line 14, after the word ‘inclusiveinsert the 
following: sections seven hundred and sixteen to seven hundred and 
twenty, both inclusive. On page 220, in line 3, after the word ‘‘eighty- 
seven,’’ insert except sections four, jive, six, seven, and ten thereof. 
Beginning in line 13 strike out the following: “An act to establish 
circuit court of appeals and to define and regulate in certain cases the 
jurisdiction of the courts of the United States, and for other pur¬ 
poses, approved March 3, 1891.” On page 221, in line 13, after the 
word “eleven,” insert the following: Sections one, two, three, four, 
five, the first paragraph of section six, and section seventeen of an act 
entitled “A7^ act to create a Commerce Court, and to amend an act 
entitled ^An act to regulate commerce, approved February four, eighteen 
hundred and eighty-seven, as heretofore amended, and for other purposes,* 
approved June eighteenth, nineteen hundred and ten.” 

Section 298. On page 221, in line 21, after the word “Act,” insert 
the words or affecting the organization of the courts. 

Section 299. On page 222, in line 6, after the word “ proceeding” 
insert the following: including those pending on writ of error, appeal, 
certificate, or writ of certiorari, in any appellate court referred to or 
included within the provisions of this act. 

Section 301. On page 222, in line 19, strike out the word “July” 
and insert January] and strike out the word “eleven” and insert the 
word twelve. 

W. B. Heyburn, 

Geo. Sutherland, 

James P. Clarke, 
Managers on the part of the Senate. 

B. O. Moon, 

Herbert Parsons, 
SWAGAR ShERLEY, 
Managers on the part of the House. 


